Rebalancing of the Burden of Proof in Sexual-Harassment Cases Needed

Herman Cain’s campaign is pointing fingers at a Republican rival and an Obama consigliere for revealing–well, actually, “revealing” isn’t the right word here, and that’s the real problem…

…to sum up: Anonymous sources told Politico that unnamed women alleged that Cain said unspecified things and made unspecified gestures to them sometime before the turn of the century. The only available fact is that the complaints led to a legal settlement, which included a confidentiality agreement, so its details are unknown. Since the complaints never got to court, there was no official finding of fact…

…Is this news or gossip?…

…the real trouble here is that there is nothing but implication…

…With virtually no facts available, a fair-minded person cannot possibly draw any conclusions from these stories. Maybe Cain behaved badly. Maybe the women were unhappy in their jobs and took advantage of a legal regime that–especially in the wake of the furor over Anita Hill’s unsubstantiated accusations of ribaldry against Clarence Thomas–is highly indulgent of sexual-harassment allegations. Maybe the real story is something in between and involves elements of misunderstanding.

It seems to us, however, that the original Politico report is a pretty poor excuse for journalism. Of the six questions a reporter is supposed to answer, Politico told us only where and when–at the National Restaurant Association in the 1990s. Politico withheld information about who (both the accusers and its sources) and either didn’t know or didn’t say what, why and how.

Journalists have confidentiality agreements of their own, which they strike with sources in exchange for information–but in this case there wasn’t enough information to make a real story. That is in part because of a practice of also concealing the identities of women who make any kind of sexual allegations against men, a custom originally intended to protect rape victims.

The latter assumption presupposes the sexual innocence of women–a paternalistic assumption that dates back to an era in which women were also held accountable through social shaming to standards of sexual innocence. If women in such disputes enjoy a presumption of innocence that is nearly impossible to rebut–“I believe Anita Hill”–that amounts to a presumption of guilt against any accused man.

At least Hill was an identifiable person making specific accusations. With the Cain stories, we are asked to presume he is guilty even though we don’t know what he is accused of or by whom. Anyone who believes in the American ideal of equality before the law should consider it a travesty…

…A consequentialist Cain skeptic might argue that it would be a good thing for the country if Cain’s campaign fell apart even if by unjust means. We can’t agree with that. If a rival campaign is behind this, it would be better if voter revulsion at such tactics sank that campaign–and eventually prompted a rebalancing of the burden of proof in sexual-harassment cases.